Legal Village

Interrogation lawyers may face overseas charges

Posted 16/05/2008 by Bar Talk

Philippe Sands believes that several former Bush administration lawyers should think twice before they travel abroad in the future. Sands says that these attorneys approved interrogation procedures for prisoners at Guantánamo Bay that may have crossed the line into torture. And while nothing might happen to them in the US, Sands argues that these lawyers could face criminal charges in other countries for violating international laws against torture.

Sands, an English lawyer who has done some work on behalf of UK detainees at Guantánamo Bay, makes his case in his just-published book Torture Team: Rumsfeld's Memo and the Betrayal of American Values. The memo in question, which authorised a range of aggressive interrogation techniques, was signed by the former US Secretary of Defense, Donald Rumsfeld, on 2 December, 2002. It was retracted two months later.

William Haynes, then-general counsel of the Defense department, authored the memo. According to Sands, four other Government lawyers played a key role in its development: Douglas Feith, then an undersecretary of Defense; Jay Bybee and John Yoo, former Justice officials who co-authored a controversial August 2002 opinion on interrogation procedures; and David Addington, then-counsel to Vice President Dick Cheney.

Sands takes violations of international law seriously - the field is his specialty both as a lawyer and as an academic. A founding member of Matrix Chambers, one of London's best-known barristers chambers, he also taught at New York University School of Law for 12 years. He visited the US last week to talk about Torture Team to several audiences - the most prominent being the House Judiciary Committee, which has been investigating the Government's interrogation policy.

Sands also found time to talk to AmericanLawyer.com. The following is an edited version of their conversation.

American Lawyer: This book's focus is very narrow - it's literally just about a single memo.

Philipe Sands: A single, one-page memo that authorises 15 techniques of interrogation and leaves open the possibility of using three others, including waterboarding. I traced back every single person who'd been involved in the decision-making process. And I interviewed, face to face, as many of them as I could, to get the story of where that memo had emanated from.

AL: Is there any one individual in particular you think bears the most responsibility?

PS: The person who comes out as the leader is David Addington. I've got a lot of people talking about his role and his fingerprints are all over this. But Haynes was most directly involved. It was he who crafted the memorandum that was put in front of Rumsfeld.

AL: You write that these interrogation procedures were used primarily on Mohammed al-Qahtani and a second detainee at Guantánamo.

(Note: The Government claims that al-Qahtani is the '20th hijacker' and one of the masterminds of the 9-11 attacks. Al-Qahtani, who has been held at Guantánamo for more than six years, was charged with murder and war crimes in February. Those charges were dismissed late last week: a report appears in The Am Law Daily.)

PS: I don't think they were used on anyone else - although they are the same techniques that have been used by the CIA in extraordinary rendition proceedings and they have also been used at Kandahar and Bagram in Afghanistan. But I haven't focused on that. I don't believe there has been systematic torture at Guantánamo. I think Guantánamo is not a good place; I think Guantánamo is lawless in many respects; but I don't think there has been systematic torture.

AL: Let's pull back for a moment, for people who may not be keeping up with the torture debate. Why did the administration's lawyers have to weigh in on the interrogation policy in the first place?

PS: Because US law and international law define torture reasonably clearly and establish an unambiguous prohibition against torture from which there is no exception, under any circumstance. Faced with this, the Bush administration recognised that if it was to act lawfully, it had to find a way to get around those definitions and those constraints. The lawyers were invoked to provide that necessary service.

AL: Do lawyers have the capability to define torture?

PS: Not on their own. I don't think a lawyer can determine whether someone has been tortured without technical assistance. I found a clinical psychiatrist who's probably one of the leading experts in the UK on torture - Abigail Seltzer, who's treated torture victims from Iran and Egypt. I gave her the interrogation log for al-Qahtani and I asked her, "Does this match torture?"

(Note: The log describes the response of al-Qahtani to the interrogation procedures - including extreme sleep deprivation, aggravating noise and humiliation techniques- that were used on him during a 51-day period in late 2002 and early 2003.)

She was very careful in what she said. In her view, there isn't a medical definition of torture. Ultimately, it's a legal definition. She was looking for "indicators of distress" to determine whether al-Qahtani had suffered severe mental pain and suffering. And she concluded that he had. From a medical perspective, there were indicators of distress that would allow the conclusion to be made by another person - a lawyer or a judge - that he had been tortured.

AL: A lot of sincere people disagree about what constitutes torture. Some will allow procedures that others find abhorrent. Is there an objective way to determine what crosses the line and what doesn't?

PS: There's no more an objective way of making that determination than other determinations that judges and lawyers have to make every day: is a defendant insane? Is he mentally fit to stand trial? We have to make judgement-calls every day on these kinds of issues and this issue is no different.

AL: So you think there's a good case to be made that the lawyers who contributed to the Haynes memo violated international laws against torture?

PS: There's definitely a good case to be made and if the US doesn't sort this out through some appropriate factual inquiry or other means, that will signficantly increase the likelihood of investigation and possible prosecution abroad. I fall short of issuing a call for any sort of prosecution. I rely on a conversation I had with a European judge and prosecutor who were pretty astonished when they saw all of my material. And they formed a pretty clear view: "We don't care if it's just the torture of one person, if that's what it was. One person is sufficient to impose upon us a responsibility to investigate."

Part two of this interview will appear later this week on Legal Village and AmerianLawyer.com.